SOAS Research Online

Abstract

This paper concentrates on problems of excessive expenditures in marriage ceremonies, child marriage, polygamy and divorce. To date, these areas are governed by the traditional Hanafi law which, on the whole, has remained in its medieval form in Afghanistan. The existent statutory legislation which has been added to the Hanafi Law, has introduced no substantial change to the Hanafi traditional doctrines. Modern reforms of the Shari'a as introduced in the Middle East have challenged the validity of the traditional interpretations of the Shari'a principles. The traditional laws of child marriage, polygamy and divorce have been subject to radical change in recent times. Afghanistan also underwent a brief experience of similar reforms under the Nizamnama legislation of the 1920's. These were, however, short-lived, and a rebellion by the traditionalists in 1929 led to a reversal of these reforms. The Nizamnamas constitute the first modernist reforms and are therefore a good starting point in the study of matrimonial problems. The existent evidence in many Muslim countries including Afghanistan points to the continuation of a modernized Shari'a in the area of family law. Modernization of the Shari'a necessitates a process whereby proposals for its reform must seek juristic justifications from within the Shari' a. Needless to say that law reform especially in the area of family law must reflect the social needs. An inquiry into the juristic and social bases of the matrimonial problems is therefore the main concern of this paper. The fact that child marriage, polygamy and divorce are easily attainable without involving legal deterrents to guard against their abuse, constitutes a major problem in these areas. This paper underlines these problems and aims at providing solutions in terms of future reforms. Experience has proved that as a result of the intransigence of the traditionalist religious attitudes, and of the prevalence of patriarchal tribal practices, statutory legislation on matrimonial problems often failed to take effect in practical terms. It is therefore important to be pragmatic in one's approach to finding solutions to these problems.